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It’s business suits versus lawsuits

Risks involved in enforcing dress codes

When dealing with dress codes, the type of suits businesses do not want employees considering are lawsuits.

Paul F. Keneally

Paul F. Keneally

Dress codes can bring up so many sensitive issues and enforcing them can open an employer to risks, labor and employment attorney Paul F. Keneally told a group of Rochester Business Alliance members Friday during a discussion on “Dress Code or Fashion Police: Avoiding Legal Issues.”

“We have a big issue with the monkey suit,” said Kessler. “I would rather wear business casual every day. But of course, you know as soon as you go business casual, someone goes way business casual.”

But, he said, it can depend on client or customer expectations. Keneally, a partner at Underberg & Kessler LLP, said people his parents’ ages and older prefer everybody in a suit while some young startups prefer business casual all the time.

Keneally, said dress codes are usually a human resources issue, but if not handled correctly, can end up in court.

Talking truthfully to employees, often solves any legal problems, he said. If employees feel they were treated fairly, they do not think of ways to sue the company.

The topic is generally covered by New York’s at-will employment policy, which gives a company a lot of leeway to set a dress code and create a company culture.

Keneally said the primary limitation is discrimination law. Covered under New York Human Rights Law for employers with four or more employees, or federal Title VII or both is discrimination on the basis of gender identity, age, race, sex, national origin, religion and sexual orientation.

Keneally said obesity could be next; that there are a lot of pending bills that could add obesity as another protected class, or bullying could be addressed, the topic of legislation that has been passed by the Democratic-controlled Assembly, but failed in the Senate where Republicans have a majority. Keneally said there is a chance Democrats could gain a majority in the Senate this year or next and bullying in the workplace laws could be coming.

Those laws could be tougher for employers, he said, because everybody who is fired thinks they were bullied, or if their performance is criticized, even if fairly, they could argue they were bullied.

“Bullying would be a terrible law,” he said. “There are plenty of existing laws to handle bad treatment of employees.”

Another relatively new issue is social media. Keneally asked if companies want to get into the minefield of what their employees wear when not working or post to social media sites, cautioning it is unlikely to be an appropriate topic.

Consistency in enforcement is key, Keneally said, noting an employer cannot bar someone from wearing a union insignia if it allows other employees to wear insignias from sports teams or other entities.

And when it comes to fashion, it is different for men and women. Keneally brought up a case, Bombalski v. Lanxess Corp., pending in the U.S. District Court for the Western District of Pennsylvania, in which Lindsay Bombalski brought suit against her employer, alleging sexual harassment, a hostile work environment and retaliation.

Nine months after she started working for Lanxess, through a temporary employment agency, Bombalski’s supervisor told her “her body was offensive to someone at work and, although her clothing did not violate the company’s dress code, her breasts were too large for her attire.”

Keneally said Bombalski was actually an excellent employee because she initially asked for an apology, giving the supervisor an opportunity to recognize she might be wrong and should possibly talk to her managers about the potential risk. Bombalski did not bring suit until after she was fired.

Another interesting fact, Keneally said, was the issue did not blow up immediately, so there were other opportunities to fix the situation before it got to court.

Religion is a big one, he added, noting it is involved in many of the cases across the country such as EEOC v. 704 HTL Operating LLC, 979 F. Supp. 2d 1220 (U.S. District Court for the District of New Mexico, 2013) in which the Equal Employment Opportunity Commission brought a claim on behalf of a Muslim woman who was told to take off her hajib, a head scarf commonly worn by some Muslim women.

In fact, she had worn it to her interview for a hotel job, but was informed on her first day that the corporate office would not allow it because it did not want customers to know she was Muslim.

“I can’t really defend this employer at all, but it happens,” Keneally said, noting a lot of discrimination suits result from complaints of racist customers or clients. “You just can’t believe you can open a federal case book in 2013 and see that. This is direct evidence. It’s an easy case. It’s going to be very tough to defend that.”

In Lewis v. New York City Transit Authority, still pending in the Eastern District of New York, (Lexus 46471), a Muslim woman bus driver was fired for refusing to affix the company logo to her head scarf which she had worn every day until the transit authority issued a new headwear policy in November 2003.

The detailed policy directed managers to strictly enforce the headwear policy and immediately discuss the policy with any employee who refused to cover noncompliant headwear with a depot logo cap for religious reasons.

The plaintiff, who still refused to comply, was transferred to another department where the public could not see her, but lost significant overtime pay and was eventually fired while on sick leave, dying a short time later. The suit, brought by her husband, also alleged retaliation, claiming she would not have been fired if she had not complained about discrimination.

Keneally said that matter even went through a union. “Apparently nobody had any brains anywhere,” he said. “They even issued a bulletin (on the new policy). They should have just jumped in front of the bus themselves.”

Keneally said even if there was a policy requiring headwear with the company logo, it would have been trumped by religion.

The next Friday Business Briefing will be Aug. 15 when Kyle W. Sturgess, a labor and employment attorney at Harris Beach PLLC, will talk about “Consequences of Misclassifying Independent Contractors.”